IMPORTANT POINT
Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed or even a few days thereafter to enable accused persons to move to higher Court.

Headnote:Criminal Procedure Code, 1973—Section 438—Anticipatory bail—Appeal challenging the order of granting bail on plea that respondents were granted bail without surrender—Distinction between an ordinary order of bail and an order u/s 438 of the Code—Power exercisable u/s 438 Cr.PC. is extra-ordinary in character and only in exceptional cases where it appears that person may be falsely implicated or there were reasonable grounds for holding that person accused of offence was not likely to misuse liberty that power is to be exercised—While dealing with an application u/s 438 CrPC Court can not restrain arrest—Impugned order was liable to be modified regarding directions.
       Held : It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of an important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.(Para 6)
       An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest.(Para 13)
       An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. (Para 14)
       In view of what has been stated above some of the directions, given by learned Single Judge, as quoted above, are not in line with what has been stated in Adri Dharan Das’s case (supra). Accordingly we modify the directions. Since the respondents have already surrendered and have been granted bail in terms of the High Court’s directions, they shall surrender before the concerned court and shall move for bail in terms of Section 439 of the Code within four weeks from today. On that being done the case shall be considered in its proper perspective uninfluenced by the fact we have disapproved stipulation of conditions by the High Court. The concerned court shall deal with the matter appropriately. It is brought to our notice that the husband of the deceased has already been released on bail after his surrender. The effect and/or relevance of that order shall be duly considered by the concerned court while dealing with the application for bail to be filed within stipulated time.(Para 16)

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Madras High Court while dealing with an application filed in terms of Section 438 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) .This Appeal has been filed by the complainant. The applicants before the High Court who are respondents 1 to 3 herein, filed the application as they were apprehending arrest in crime No. 1358 of 2006 which was under investigation of the Inspector of the concerned circle. It was alleged in the complaint that because of the dowry demands, the victim committed suicide and the accused-respondent Nos. 1 to 3 apprehended arrest for the alleged offence under Section 304 B of the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961 (in short the ‘Act’).

3. The application was disposed of by the learned Single judge inter-alia with the following observations and directions:

i.each of them should execute a bond for a sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) together with two sureties each for the like sum to the satisfaction of XVII Metropolitan Magistrate Saidapet, Chennai.

ii.The first petitioner shall appear before the respondent police for a period of two weeks daily at 10.30. a.m. and thereafter the first petitioner shall appear before the respondent police as and when required.

iii.The petitioners 2 and 3 shall report before the respondent police for a period of three days from l0.30. a.m. to 12.30 noon everyday and thereafter they shall be available for interrogations as and when required.

iv.The petitioners 1 and 2, in consultation with the first accused, who is the husband of the victim in this case, shall take all necessary steps to band ever all the articles belonging to the victim viz. gold and diamond jewellery, house held articles including the silver articles and the cash to the father of the victim within a period of two weeks after our execution of this order.

The petitioners shall surrender before the court referred to above for executing the bond and furnishing sureties within two weeks from the date of receipt of copy of this order, falling which, this order shall stand cancelled.”

4. The only point urged in support of the appeal by the informant-appellant is that the parameters to be kept in view, while dealing with an application under Section 438 of the Criminal Procedure Code, 1973 (in short the ‘Code’), had not been kept in view. It was submitted that actually the respondents have been granted bail without surrender, since the terms for release have been stipulated in the order itself.

5. Learned counsel for the respondent Nos. 1 to 3 on the other hand submitted that the materials on record clearly justified passing of the order as done, and there is nothing illegal in the order to warrant any interference. Further the respondents have already surrendered and have been granted bail on the terms stipulated by Learned Single Judge.

6. The facility which Section 438 of the Code gives is generally referred to as ‘anticipatory bail’. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression ‘anticipatory bail’ is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton’s Law Lexicon explains ‘bail’ as ‘to set at liberty a person arrested or imprisoned, on security being taken for his appearance.’ Thus bail is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arres

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2007 Supreme(SC) 246

IMPORTANT POINTAnticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed or even a few days thereafter to enable accused persons to move to higher Court.

Cases Referred (7)

IMPORTANT POINT
Anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed or even a few days thereafter to enable accused persons to move to higher Court.